Mr. Bloom said that the administration proposed giving doctors a 6 to 7 percent reduction in premiums, establishing new patient safety provisions, helping the handful of malpractice insurers take excess liability off their books, and re-establishing an assessment so all the state’s property and casualty companies would support the malpractice high-risk pool, not just those few writing malpractice insurance.

However, with the collapse of the financial market and troubles at insurance giant AIG, the program bill was put on hold.

Blepharoplasty basically is surgery in which excess tissue is removed from the eyelids. It is the most commonly performed cosmetic surgery on the face. Upper eyelid surgery is usually performed for removal of excess skin, muscle and fat and lower lid surgery for the removal of fat pads, so called baggy eyelids caused by herniation of periorbital fat.

As a New York medical malpractice attorney we understand the most serious complication of blepharoplasty is partial or complete loss of vision, most commonly as a result of intra-orbital hemorrhage. A widely accepted theory suggests orbital bleeding increases intraorbital and intraocular pressure, compromises the ocular circulation, and results in ischemic or optic nerve damage. Ischemic optic neuropathy and central artery occulsion are believed to be the most common final events in most cases of blindness after blepharoplasty. (Lowry JC, Bartley GB: Complications of Blepharoplasty. Surv. Ophthalmol 38:327-350, 1994).

It is thus essential, prior to surgery, for the physician to carefully assess the patient’s risk factors for bleeding. Aspirin, aspirin-containing products, other antiplatelet agents and anticoagulants should be discontinued prior to surgery. (Id. at p. 331). In this regard, the physician should obviously be aware of all medications used by the patient.

Acute orbital hemorrhage constitutes a medical and surgical emergency. Severe permanent visual impairment is likely if vascular compromise exists for more than 90 minutes. Prompt recognition and management are essential. (Id. at 332).

The following is an excerpt of a deposition of a plastic surgeon in a New York Medical Malpractice case in which the patient suffered a post-operative hemorrhage following blepharoplasty resulting in a complete loss of vision of the affected eye.Continue reading →

In products liability cases involving allegedly defective machines such as printing presses, plastic molding machinery, power saws, power presses and innumerable others, the defense will invariably argue that it was the plaintiff’s culpable conduct which caused the accident and resulting injury. In other words, the defendant will argue that it was the plaintiff’s failure to use the product properly or to follow warnings which caused the plaintiff’s injury. In New York the plaintiff’s culpable conduct is a defense in a Products Liability case. The problem confronting the plaintiff’s attorney is that plaintiff will often not have used the machine properly. Given this fact, the jury must be taught that such misuses were reasonably foreseeable and that the manufacturer knew or should have known that users of products are people and that people can make mistakes which must be guarded and warned against.

The deposition of the defendant’s design engineer in a products liability case is crucial in New York. Defendants will often produce a risk manager on behalf of the manufacturer for deposition. This is totally unacceptable. The plaintiff’s attorney must insist that a design engineer with knowledge of the product be produced in order, among other things, to deal effectively with the affirmative defense of culpable conduct. Indeed, the deposition notice should be specific in this regard.

In order to effectively depose defendant’s design engineer with regard to the defense that the plaintiff’s negligence caused the accident, the plaintiff’s attorney must understand the concept of ergonomics as it relates to product design engineering. An understanding of hazard analysis is also required. Ergonomics as it relates to machine design involves the consideration of human factors and characteristics in designing safety features into machines. The basic precept is that people make mistakes. Since this is foreseeable to the design engineer, it must be taken into consideration when designing a product. A machine must be designed so as to reduce, as much as technologically feasible, without destroying the utility of the machine, foreseeable actions by the operator resulting in injury. In order to design a machine so as to reduce the potential of injury resulting from human error, hazard analysis must include a collection of accident and injury information. Product design is not a stagnant event, but an ever evolving process, which requires constant review of injury data, so that modifications to the machine design may be made to eliminate predictable human behavior resulting in injury. A hazard is a condition that may cause injury. Once a hazard has been identified, the risk of injury as a result of the hazard must be reduced as much as possible while preserving the utility of the machine. A machine is dangerous when the risk of being injured by the identified hazard is unacceptable.

Once a hazard is identified, it is the responsibility of the design engineer to design the machine so as to eliminate, or at least, reduce the possibility of injury resulting from that hazard. There is an accepted priority in the field of product design engineering with regard to the prevention of injury from an identified hazard. The first goal of the design engineer is to eliminate or design out the hazard if this can be done without destroying the functional utility of the product. Obviously, this often cannot be done. The second option is to guard against the hazard causing injury. If the hazard cannot be guarded against the final option is to warn about the potential of injury resulting from the known hazard.

In many cases involving injury caused by allegedly defective machines, the machine will have had a warning on it as to the very action by the plaintiff which precipitated his injury. This must, of course, be dealt with at the deposition of the defendant’s design engineer. Most design engineers will admit that written warnings are the least effective method of protecting someone from a known hazard and should be used only as a last resort or in combination with proper guarding.Continue reading →

Robert Conason will be speaking at The New York State Trial Lawyers Institute’s renowned Decisions Program on Trial Practice. Our Partner Rhonda Kay prepared the written materials on this subject for the course book which reports on over 100 cases that have come down within the last year in the area of Trial Practice. The New york City program will be held on Thursday and Friday , September 10 & 11, 2009: 9am to 5pm at Bayard’s, One Hanover Square, 3rd Floor, New York, N.Y. 10004. For more information click here.

This is from a Seminar by The New York State Bar Association, Construction Site Accidents: The Trial of a Labor Law Case. The Seminar was developed by Howard S. Hershenhorn who was the over -all planning chair. In this segment Mr. Hershenhorn gives a demonstration of an opening statement on behalf of a worker injured in a New York Construction Accident. The full seminar is recorded and available for CLE Credits from The NYSBA.

New York medical malpractice attorney Anthony Gair discusses a medical malpractice case, which was tried in New York Supreme Court, New York County, in which a woman who had since birth a congenital abnormality known as an hemangioma on the left side of the face which is caused by an abnormal distribution of blood vessels. There are different types of hemangiomas such as capillary or cavernous hemangiomas which may actually cause physical impairment. The type of hemangioma the plaintiff had was an intradermal hemangioma often referred to as a port wine stain because of its color which does not cause physical impairment. Since her teenage years, she was able to cover it up with make-up. When she was 40 years old she developed what are known as blood spots or blisters, which are raised areas on the hemangioma which caused difficulty in covering it with make-up.

Being concerned about it, she consulted with the defendant-plastic surgeon. Plaintiff claimed she only went to the physician because of the blood spots. It was claimed she had lived her entire life with the birthmark and only desired treatment for the blood spots.

Plaintiff’s strategy at trial was that the defendant was solely a cosmetic surgeon, not a reconstructive plastic surgeon who dealt with devastating physical disfigurements. The idea was to portray her as highly mercenary, going so far as to advertise extensively for patients who she claimed she could make look better. Plaintiff asserted that she told the defendant she was concerned with the blood spots because she couldn’t cover them with make-up. She testified that the defendant told her not only could she get rid of the blood spots but that she could remove most if not all of the hemangioma. The plaintiff, as would be expected, became very emotional that after all these years the hemangioma could be removed.Continue reading →

On Nov. 4, 2005, plaintiff Gloria Aguilar, 45, a homemaker and part-time housecleaner, was struck by a New York City Transit Authority bus. The incident occurred on West 50th Street, alongside its intersection at 10th Avenue, in Manhattan. Aguilar sustained injuries of her arms, head, legs and torso. Aguilar sued the bus’s driver, Andrew Monaco, and the bus’s operator, the New York City Transit Authority. Aguilar alleged that Monaco was negligent in his operation of the bus. She further alleged that the New York City Transit Authority was vicariously liable for Monaco’s actions.

Our Partner Jeffrey B. Bloom will be speaking at this program to be held on Wednesday, September 23, 2009 through Thursday, September 24, 2009 at New York’s Hotel Pennsylvania, 401 Seventh Avenue (at 33rd St.), New York, NY.

This program is designed for recent law school graduates and newly admitted attorneys to “bridge the gap” between law school and the realities of practicing law in New York State. Learn practical information from skilled and experienced practitioners and get the skills you need to make a smooth transition from law student to attorney. Newly admitted attorneys can satisfy all of their annual MCLE requirements by attending this two-day program.

Jeff will be speaking on Wednesday, September 23, 2009 on COMMENCING A CIVIL LAWSUIT IN NEW YORK STATE. For more information click here.

In Parente v 277 Park Ave. LLC, decided June 25, 2009, The New York Appellate Division, First Department granted plaintiff’s motion for summary judgment under Section 240 of The New York State Labor Law.

The plaintiff was injured when he fell off a ladder he had placed on a desktop in an office leased by defendant Chase, while inspecting a malfunctioning booster fan over the desk. In rejecting the defendants’ argument that the work was only routine maintenance The Court held:

Labor Law § 240(1) imposes absolute liability on owners, contractors and their agents for injuries to workers engaged in the repairing of a building or structure that results from falls from ladders or other similar devices that do not provide the intended protection against such falls (see Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289, 290 [2002]). It does not, however, apply to routine maintenance that is not performed in the context of construction or renovation. Replacement of parts that routinely wear out is considered maintenance, outside the purview of this section (see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 882 [2003]). Where something has gone awry, however, requiring repair, § 240(1) is applicable (see Caraciolo v 800 Second Ave. Condominium, 294 AD2d 200, 201-202 [2002]; Franco v Jemal, 280 AD2d 409 [2001]).

In Parnell v Montefiore Med. Ctr. decided June 23, 2009, The New York Appellate Division, First Department, reinstated the complaint in a Medical Malpractice Case against the defendant hospital which had been dismissed by the New york Supreme Court, Bronx County. While affirming the dismissal of the complaint against the defendant doctor the Court held as to the hospital;

“However, we find that there is an issue of fact as to the hospital’s negligence. It was the hospital’s duty to monitor the patient postoperatively, including monitoring the chest tube and the Pleurovac closed drainage system and all its component parts. The drainage system provided continuous suction to assist in drawing air and fluids out of the pleural space. The assertion of the hospital’s expert that there was no evidence that the chest tube became detached from the suction is contrary to the record. Dr. Lonner testified that he noticed that the chest tube connection, specifically the connection between the patient and the canister attached in turn to the wall suction, was detached, and that he immediately re-attached the connection and proceeded with the resuscitation. Dr. Lonner also testified that if the tube became detached, air could go back into the pleural space and create a pneumothorax. This testimony alone, that an integral part of the drainage system had become detached and increased the risk of a pneumothorax, the very harm that befell the infant plaintiff, raises an issue of fact as to the hospital’s negligence.

Further, plaintiffs’ expert averred that it was good and accepted medical practice to check all the component parts of the chest tube and canister every time the patient was seen, at least once every hour, and that had the tube been properly monitored, it would not have become dislodged and the infant plaintiff would not have suffered a pneumothorax. He took issue with the conclusion of the hospital’s expert that a mucus plug occasioned the infant plaintiff’s respiratory arrest, pointing out that while there was evidence that the tube was dislodged when Dr.Lonner found the infant plaintiff, the medical record contains no evidence of a mucus plug.”